Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

I have been doing some research on the 2003 Canberra Bushfires and was looking at where authority for certain plans with respect to managing the response came from. One little gem I uncovered in the Rural Fire Control Manual (legislative instrument required under ACT Bushfires Act 1936 (now repealed) was around ‘casual passers-by’ who assist with putting out a fire being entitled to compensation if injured. I don’t know if you knew of the existence of this or if there are any similar arrangements around the country to provide protections to people providing assistance in such situations. I have no specific question, just found it interesting and wanted to pass it on:

4.4 EMERGENCY VOLUNTEERS

The Bush Fire Council recognises that there are many people including casual passers-by who may lend assistance to bushfire suppression particularly in its early stages Where a casual passer-by sees a fire starring he or she should be encouraged to take whatever action within their capabilities to suppress that fire and they therefore should be covered for any injuries sustained by him/her including a loss of wages, unless it can be shown that they did not act in good faith. Council also recognises that there are many people in rural areas who will act in support of volunteer firefighters and while they may not be involved in direct firefighting at the flame front they may also sustain injuries through their role in supporting other firefighters. They too are entitled to compensation.

Today ‘casual passers-by’ would be called ‘spontaneous volunteers’. Spontaneous volunteers can be grouped into (at least) two categories, those that step forward of their own initiative and do what they see needs to be done. They may act alone or they may form into quite well organised groups such as the original ‘Queensland mud army’ the Christchurch ‘Student Volunteer Army’ or the Tasmanian ‘We can help’ group. Similar groups have arisen in international disaster response one well known group being ‘Surf Aid’ (which existed before the 2004 SE Asian Tsunami but started its emergency response work after that event. It may surprise anyone who’s done AIIMS training that they are not in control of these groups. The position of ‘incident controller’ is largely absent from legislation (but see, as an exception that proves the rule, Fire and Emergency Act (NT)). The Incident Controller may exercise control over their own service by virtue of the chain of command and internal doctrine, and over other services by virtue also of doctrine and adherence to various emergency plans, but agencies and people outside the emergency services are free to do what they like absent specific laws to the contrary. The IC may be able to order evacuations from certain areas and they like but they can’t stop, nor should they stop, spontaneous groups that spring up to meet a community need. Such actions are ultimate examples of community resilience and self help.

Other spontaneous volunteers are more like those described in the Rural Fire Control Manual and who ‘spontaneously’ volunteer for, and place themselves under the direction and control, of the statutory emergency services. All the states and territories recognise that these volunteers exist and provision is made to provide compensation should they be injured or suffer property loss in the course of their volunteering. The compensation can extend to’ loss of wages’ but not in the sense of paying them for their time, but paying for lost wages if because of their injuries they are unable to work for some period of time.

In New South Wales the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides that volunteers who come forward to provide assistance to, or act under the supervision of, Fire and Rescue NSW or to undertake ‘ambulance work’ are “deemed” to be employees of Fire and Rescue NSW (Schedule 1, cl 13) or the Health Admini­stration Corporation (Schedule 1, cl 19) and are therefore entitled to workers compensation should they be injured.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) establishes a BushFire-fighters Compensation Fund (s 19) and an Emergency and Rescue Workers Compensation Fund (s 31) to pay compensation to members of the Rural Fire Service, the State Emergency Service, Volun­teer Rescue Association, surf life-savers and other deemed fire-fighters or rescue workers who are injured in the course of their duties. A fire fighter is:

… any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire: (i) with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or (ii) in conjunction with any civil authority; or (c) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire and who, in the opinion of the Authority having regard to all the circumstances, should be deemed to be a fire fighter (s 5, definition of ‘fire fighter’).

The definition of emergency worker isn’t quite so broad, referring to a person appointed under various section of the State Emergency Service Act 1989 (NSW) or persons listed in the regulations which includes members of the SES, members of organisations ‘affiliated’ with the SES and members of a rescue squad operated by the New South Wales Volunteer Rescue Association (Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2012 (NSW). There remains a catch all however, in that an emergency worker is also any ‘person who, in the opinion of the Authority having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 23(c), definition of ‘emergency worker’); the Authority is the WorkCover Authority of NSW (s 3)).

Both the definition of fire fighter and emergency worker are sufficiently broad, and have a very wide ‘catch all’ provision that would include the ‘casual passer-by’ who volunteers subject to the direction and control of the Rural Fire Service or State Emergency Service.

In the Northern Territory, a person who voluntarily engages in fighting a fire, training exercises or other activities ‘with the consent of or under the authority and supervision of, or in co-operation with. a volunteer fire brigade (established under the Bushfires Act) is deemed to be an employee of the Territory (Workers Rehabilitation and Compensation Act (NT) s 3, definition of ‘worker’). As a deemed employee they will be entitled to workers’ compensation but there is no requirement that they were ‘signed up’ before the fire.

The position is not so generous for spontaneous volunteers with the Fire and Rescue Service of the NT or the SES established under the Fire and Emergency Act (NT). The definition of worker, in that situation, extends to a person who voluntarily engages in fighting fires or dealing with other emergencies ‘as a volunteer member’. A volunteer member must be appointed by the Director (Fire and Emergency Act (NT) s 14) so absent ‘field appointments’ the casual or spontaneous volunteer won’t be a member of the relevant organisation.

In Queensland any person who is acting ‘… under a resource operator direction or a help direction is taken, for the Workers’ Compensation and Rehabilitation Act 2003, to be employed by the Commissioner of the Police Service’ (Public Safety Preservation Act 1986 (Qld) ss 8(c), 8(i) and 45). Such a person would, if injured, be entitled to claim workers compensation in their position as a deemed employee.

The WorkCover authority may enter into contracts to provide worker’s compensation for members of the SES (including a ‘a person required to give reasonable help’ during an emergency), rural fire brigades, volunteer fire fighters and honorary ambulance officers (Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 13-15, 17). It’s not clear what is the difference between a ‘member of a rural fire brigade’ (s 14) and a ‘volunteer fire fighter’ (s 15) so it’s not clear how far, or to whom, this provision extends.

South Australia is the “presumed” employer of volunteer fire fighters, State Emergency Service volunteers and volunteers with certain marine rescue organisations (Workers Rehabilitation and Compensation Act 1986 (SA) s 103A; Workers Rehabilitation and Compensation Regulations 2010 (SA), r 17).A volunteer fire fighter includes a member of the Country Fire Service and any ‘person who, at the request or with the approval of a person who is apparently in command pursuant to Part 4 of the Fire and Emergency Services Act 2005, at the scene of a fire or other emergency, assists in fire-fighting or dealing with the emergency’. Part 4 of the Fire and Emergency Services Act 2005 deals with the SA Country Fire Service so on that definition a person is a volunteer fire fighter if they are assisting the CFS but it does not matter if that is at a fire or other emergency. As a deemed employee, a volunteer fire fighter would be entitled to workers compensation.

In Tasmania, an emergency management worker is a member of the emergency services as well as any person who is assisting or working under the direction of the emergency services or is participating in emergency management or rescue operations (Emergency Management Act 2006 (Tas) s 31). A volunteer emergency management worker is entitled to compensation for lost or damaged property and for worker’s compensation payments, as if they were a government employee (ss 54 and 56).

In Victoria compensation is payable where a ‘… volunteer emergency worker suffers personal injury (including death) or loss of or damage to property belonging to the worker or in the worker’s possession or control while engaged in emergency activity’ (Emergency Management Act 1986 (Vic) s 27). A volunteer emergency worker is a person ‘who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency response plan or the state emergency recovery plan applies’ (s 4, definition of ‘volunteer emergency worker’). That definition would include any one assisting the Victoria SES, CFA or MFB at least during a declared state of emergency. Compensation for personal injuries is to be paid as if the worker were emp­loyed by the Crown (that is the government) and had suffered the injury during the course of his work (s 28).

The Victoria State Emergency Service Act 2005 provides for compensation for personal injury or death, or for the loss or damage of personal effects for a member or probationary member of the State Emergency Service.

The Country Fire Authority Act 1958 provides for “compensation of casual fire-fighters and volunteer auxiliary workers” (s 63). A casual fire-fighter is anyone who ‘… without remuneration or reward voluntarily engages in fire-fighting at any fire in or outside Victoria with a Victorian brigade or group of brigades at the request … [of] or with the approval … of an officer in charge of operations at the fire …’ (s 62) but excludes enrolled officers and members of a brigade, as well people who are assisting the CFA on land which they own, work on or live (s 65(2)). Compensation for members of the CFA is provided for in the Country Fire Authority Regulations 2004.

Claims for compensation are made to the Country Fire Authority (Country Fire Authority Act 1958 (Vic) s 63(4); Country Fire Authority Regulations 2004 (Vic) s 76). In determining the amount of compensation to be paid, the Authority is required to have regard to the compensation that would be payable if the injured worker were entitled to compensation under the Workers Compensation Act 1958 or the Accident Compensation Act 1985 (Country Fire Authority Act 1958 (Vic) s 63(6); Country Fire Authority Regulations 2004 (Vic) s 82).

In Western Australia local governments that maintain a bush Fire Brigade must ensure that they hold a policy of insurance to pro­vide compensation for volunteer fire-fighters engaged in “normal brigade activities” (Bush Fires Act 1954 (WA) s 37). A volunteer fire-fighter is ‘a bush fire control officer, a person who is a registered member of a bush fire brigade established under this Act or a person working under the direction of that officer or member’ (s 35A) and so this, too, could include the casual passer-by. A fire-fighter is entitled to compensation as if the fire-fighter was a “wor­ker” within the meaning of the Workers’ Compensation and Injury Management Act 1981 (WA).

What this summary has shown is that, just as in 1936, the role of ‘casual passers-by’ or ‘spontaneous volunteers’ was recognised in particular in the context of rural fire fighting. The difference is that in 1936 a casual passer-by was ‘encouraged to take whatever action within their capabilities to suppress’ a fire that they observed and would be compensated if injured in the course of that action. Today they would not be covered for action that they took of their own initiative. Today casual passers-by are insured for personal injury if, and only if, they are taking action at the direction of, under the supervision of, or with the authority of the relevant fire authority. That may be a step away from local or community resilience as it doesn’t encourage action before the fire brigades arrive as it leaves the risk financial loss due to intervention with the spontaneous volunteer.